Libertarian Answer Man: Does It Matter How Law is Made?

From a libertarian colleague:

What do you think about this proposition:  “It doesn’t matter how the law is made or who enforces it.  What matters is simply that the law is reasonably and fairly enforced and it is compatible with a reasonable interpretation of our principle.”  Isn’t this what we want?

Walter Block was cc’d and—as usual, sigh—he complained that the only problem with my remarks is that only a small group would see them. In other words, as usual, he’s exhorting me to “publish” more. So … in response, here’s my informal, quick reply (lightly edited):

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I’m not quite sure how to respond to these kinds of propositions. I think the law is the result of a process. Necessarily. Necessarily. Necessarily. This is important. I think it cannot be divorced from institutions. And normative analysis and theory plays its role in that process. My goal as a libertarian is primarily to understand liberty and in a political sphere, to understand what interpersonal norms should guide the development and evaluation of extant (positive) law. I think we can adjudge certain laws and state practices and policies as unjust to the extent they more or less obviously deviate from some incontrovertible norms, like the NAP or its propertarian concomitants,¹ but I don’t think this leads to the idea that we are fine with any institution that enforces “law” “so long as” it complies with the non-aggression principle (NAP).

I think this in the end is confused and pointless. It’s like saying “hey imagine we are in the antebellum south where there is slavery, it’s all fine as long as we can run around telling the legislators and sheriffs and judges that ‘as long as you follow the NAP do what you want'”. I mean this is just not realistic. They have no interest in this so what’s the point of an unrealistic hypothetical? SURE, if there were a race of lizard aliens who dominates us but ruthlessly enforce the NAP? I mean I have fantasized myself before about a bunch of AI-powered satellites that just zap anyone who commits aggression. Would this result in a better world? Maybe. Maybe not. Perhaps. But so what? We don’t have a race of AI demigods trying to give us utopia. The idea that we can take the existing central state apparatus as a given and give it our blessing “with the caveat that” it simply “can’t violate the NAP”… It just seems … well I’m not sure what the point is. Sure, we can isolate the aggression that is at the root of bad institutions—taxation, slavery, etc. (as Walter Block does here, discussing the root problem with slavery: coercion).

I do not disagree that one tactical avenue we can use in discussing norms with normal people, is to try to show them that they already accept the NAP or similar libertarian principles (or the underlying norms, which I call libertarian grundnorms, borrowing from the Hoppean argumentation ethics idea of presupposed norms, and Hans Kelsen’s felicitous neologism), and then to show them that if they are consistent, logical, and understand just the bare minimums of economics, that the political norms they are proposing, are inconsistent with the libertarian proto- or grundnorms they already conceded that they agree with. The problem is most people shrug their shoulders when you point out an inconsistency; they are not professional thinkers and are used to compartmentalization and shrugging off the occasional inconsistency. So our problem really is that most people don’t care much about consistency, and are good at compartmentalization. Perhaps in part because this is the only way to reconcile their atavistic religious views with modern scientific and rational ideas.

I think your goal is “liberty” in the short or medium term. So you are thinking always in strategic terms. I get this, but this is the activist mentality.² Even I am prone to it, but I always fear it can corrupt—make you start dismissing people who are into theory, ignore the division of labor and favor only your own little area, make you start to compromise just to make a single tiny win…. so I stick to theory and understanding. I don’t care if the activists insult me with their crude, anti-intellectual chants of “what good has your fancy theorizing done” or whatever. My being libertarian does not require that I become a high-time preference anti-intellectual activist sellout. I’d rather understand and maybe advance libertarian scholarship in my own little way, or practice it in my own life. To be honest, that’s enough for me, because it has to be, because we won’t achieve perfect justice in our lifetimes (unless Bitcoin is the spark that finally starts to undermine the state).

Luckily we are not in concentration camps, so our choices are broader—you can still achieve and live a good life if you are good at navigating these waters. Libertarians who hate to pay taxes and use that as an excuse for having no real job or career hate this idea, but whatever. So I view my job in life as to make money and accumulate social and economic power to be able to survive in this crazy world. And to use my perch to promulgate ideas of liberty and to develop it as an intellectual endeavor.

I view the state and its various horrible intrusions into public life as similar to a disease or natural disaster or other natural threat we need to respond to.³ That’s my approach to it—have normal, good life, and then gird for the upcoming apocalypse; while in the meantime studying and promoting liberty and helping keep “the Remnant” alive. Libertarian activists hate when I say this. But I’m old enough and have been in this movement long enough—since 1981 or so—that … I don’t care. They stamp their feet and demand results now. I want results now too. I just don’t conflate fact and fiction. And I try not to stamp my feet like an insolent punk. I love Star Wars and Lord of the Rings but I know they are not real. I know the difference between fantasy/fiction and real life. No offense, libertarian activists. I have no problem being realistic (and I don’t care if activist libertarians sneeringly deride this as defeatist), and if being realistic, and honest, means I can’t be a good huxter exaggerating promoter that’s perfectly fine with me because I’d rather achieve my own liberty with my own money and success and live in a 62% liberty world as a man with integrity, than lie to myself and others in the vain hope of tweaking the knob from 62% to 62.1%—or, more likely, freedom is always being eroded so the 62% this year will be 61.5% next year, so I’m selling my soul and integrity in the vain hope of having a small chance at slowing down the decrement from 62% to 61.5%? I don’t play these games. I never pretend. I won’t do it. Whatever it is, it is, and if it’s bad, we need to know it and accept it, and build on that understanding of reality.

I think this can’t be answered easily in tight blurbs in an email. This takes lots of intellectual wrestling and knowledge and back and forth. Happy to keep engaging,

SK

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Some of my further replies, with their comments paraphrased:

I generally agree with what you say.  I’m realistic as well.  We already live much better than the vast majority of humans who ever lived.  My happiness doesn’t depend upon winning the world.

However, if we are interested in progress, and I am, I think we should strive to explain our philosophy in simple terms and avoid issues that divide us.

I’m suggesting we simply focus on the indispensable parts, such as explaining the principle and our theory of property, and not worry about exactly how the law is made or enforced.  That a reasonable interpretation is fairly enforced is all I care about.  I think if we all simply focused on selling the idea of reasoning from the principle, we’d be further along.

1. See related posts: on the distinction between abstract normative principles and concrete legal rules, see Fraud, Restitution, and Retaliation: The Libertarian Approach and KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021); see also Legislation and the Discovery of Law in a Free Society; Legislation and Law in a Free Society; The Limits of Armchair Theorizing: The case of Threats. [↩]
2. See The Trouble with Libertarian Activism. [↩]
3. See Hoppe on Treating Aggressors as Mere “Technical Problems” [↩]
4. See discussion of this in The Irrelevance of the Impossibility of Anarcho-Libertarianism. [↩]
5. See The Trouble with Libertarian Activism. [↩]
6. See Creative Common Law Project, R.I.P. and Waystation Libertarians. [↩]